IP Review Winter 2019/20

11 ‘inventor’, an individual must have actually devised part of the inventive concept. It seems that if AI systems such as The Creativity Machine are capable of operating without human intervention then the inventive concept could potentially “reside” with the AI system. This uncertainty over who should be considered an inventor of an AI-generated invention raises some interesting questions over ownership of a patent for the invention. Human inventors would be entitled to own the patent unless they have assigned the right to a new owner or are employed in a position which requires them to assign the invention to the employer. However, if an AI system is capable of being named as an inventor, who has the right to an invention it devises? From a patent law perspective, it is easy to see how the current law regarding the ownership of artificially-generated inventions could lead to disputes. Take the scenario where Person A creates an AI system, which is capable of autonomously generating novel ideas, and licenses it for use to Company B. The AI system outputs blueprints for a new device, which are first seen by Person C in Company B’s office, and person C realises that one of the new devices produced by the AI system is ground-breaking. In such a scenario, who is the inventor: the AI system or Person C? Furthermore, who is the owner of the invention; the creator of the AI system, Person A, Company B or Person C? Would the licence between Person A and Company B have to cover both eventualities to guarantee a desired chain of ownership from Person A to Company B, or retention with Person A? If Person C is deemed to be the inventor and is employed by Company B in a position from which no invention is expected, Person C could claim to be the owner of the invention. If Person C is a non-contracted intern, then the act of seeing the blueprints could be considered a public disclosure that would prejudice a patent being filed. Economic implications Given the issues identified here, it is possible the innovators may be concerned about protection of AI based innovation. However, this is presently an academic exercise. AI inventions are entirely capable of securing patent protection, as long as they can demonstrate their ability to solve a technical problem. The only issue which remains is whether the law will change in relation to the rights of ownership and inventorship when AI or machine learning was used to help ‘create’ the claimed invention. Whilst AI systems are capable of aiding innovation, in practice they require some form of human input to determine whether a particular solution identified by the AI is viable or indeed useful. In the above example, it was Person C, and not the AI algorithm, that identified the ground breaking design. As the law stands, those responsible for the input would typically expect to be named as inventors. When AI systems are capable of innovating without human input then the question of inventorship, and its implications, will undoubtedly become more relevant. To find out more contact Diego Black dblack@withersrogers.com Harry Strange hstrange@withersrogers.com Whilst AI systems are capable of aiding innovation, in practice they require some form of human input to determine whether a particular solution identified by the AI is viable or indeed useful.